A few interesting competition, advertising and regulatory law developments caught my eye today including:
The Competition Bureau published its May Report of Concluded Merger Reviews including Glencore/Viterra (3 advance ruling certificates and 16 no action letters): Monthly Report of Concluded Merger Reviews – May.
The ABA, Antitrust Section has launched new e-book: Handbook of U.S. Antitrust Sources: ABA – Handbook of U.S. Antitrust Sources.
Canadian Lawyer Magazine published a rather good article on corporate anti-corruption policies (which caught my eye given our work in the competition law compliance program area): Why Boards Need to Pay More Attention to Anti-Corruption Policies.
The CBA is offering an advertising law compliance seminar on June 19th entitled “Truth in Advertising 101: Tips for In-House Counsel”. For registration information see: Truth in Advertising 101: Tips for In-House Counsel.
The Canadian Real Estate Association, together with its U.S. counterpart the National Association of REALTORS, are making a play for the Top Level Domain (TLD) .REALTOR for their members: The Canadian Real Estate Association Partners with the National Association of REALTORS in its Application for .REALTOR Top Level Domain Extension.
The Globe has reported on a Wal-Mart review of the world’s greatest corruption risk jurisdictions (Brazil, China, India, South Africa and Mexico): Wal-Mart Bribery Review Flags Brazil and China as Corruption Risks.
The British Columbia Real Estate Association (BCREA) published its May 2012 Connections newsletter (featuring advocacy news and BCREA’s government relations activities) with updates on disclosure and remediation for properties used in drug operations, new legislation to help solve strata disputes and information for REALTORS for the move back to the PST: BCREA – Connections – May 2012.
Constantine Cannon has written an interesting note on the recent National Football League Players Association collusion claim against the NFL, its clubs and team owners alleging a concerted arrangement for a $123 million per-Club salary cap for the 2010 season: Players Charge NFL Imposed Collusive Salary Cap.
The 1709 Blog posted an interesting update on French publishers’ settlement with Google in the Google Book Search Project case: Some French Fresh Air to the Google Books Project.
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Tatiana Chabeaux-Smith
(Consumer Protection BC – reprinted with permission)
We have all had that knock at the door. You are usually just sitting down to dinner or are up to your elbows in dish water. You answer the door to find someone “just happens to be in the area” and has extra material for paving your driveway, has a ladder handy to wash your windows, or has a vacuum that you just have to hear about. We often feel hesitation around starting a conversation with a door-to-door sales person but we do it anyway because we want to be polite. And then we don’t know how to end the conversation.
Don’t get us wrong, there are many legitimate businesses that use door-to-door sales as a marketing approach and who won’t pressure you into buying. But as a consumer, it’s hard to know how to say no or how to recognize potential scams.
If someone comes to your door selling you a product or service, try to remember that you did not invite them – they approached you. You are not obligated to enter into a contract with them nor are you required to spend your valuable time listening to a high-pressure sales tactic.
Here are some tips to help you if you find yourself in a door-to-door sales situation:
1. Ask for credentials and including ID and proof of who they are working for.
2. Ask for time to think about the offer. It’s always a good idea to think things over to see if you really need the product or service.
The Antitrust Section of the American Bar Association has published the June edition of their Intellectual Property E-Bulletin, which includes discussions of recent U.S. and EU cases (the Sandisk flash memory case, reverse settlement pharmaceutical case FTC v. Watson Pharmaceuticals and European Commission’s clearance of the EMI Group’s music publishing business by Sony Corporation).
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Davies Ward has published a paper on competition and IP (patents) entitled “Mind the Gap: Economic Costs and Innovation Perils in the Space Between Patent and Competition Law”.
Outline:
“[T]he aims and objectives of patent and antitrust laws may seem, at first glance, wholly at odds. However, the two bodies of law are actually complementary, as both are aimed at encouraging innovation, industry and competition.” (Atari Games Corp. v. Nintendo of America, Inc., 897 F.2d 1572 (Fed. Cir. 1990)
“As the U.S. Federal Circuit Court explains above, the legal regimes of competition law and patent law act as complementary instruments in the pursuit of innovation and consumer welfare. Antitrust law and policy strive to maintain competitive markets, prohibiting unreasonable restraints on trade that could act as barriers to new innovation. Robust and effective competition in turn drives competitors to improve existing products or introduce new products to maintain their market share. Meanwhile, patent law and policy aim to foster long-term dynamic efficiency through incentives to invest and innovate over time. Patent law grants enforceable property rights to inventors which, as a reward for disclosure of the invention, allow the owners of the patent to unilaterally exclude others from using the property. The patent system promotes innovation by providing incentives for owners to invest in the creation and development of new inventions,4as well as by making the invention available to the public to promote build-on innovation.
Although competition and patent regimes share the same goals of innovation and related economic and consumer benefits, tensions at the interface between these areas of law have often been considered. The well-recognized challenge is to permit the legitimate exercise of patent rights while continuing to enforce competition laws where anti-competitive practices involve patent rights. But what happens where both regimes are implicated and yet neither effectively controls conduct that harms innovation and imposes economic costs? How do we compare the cost/benefit trade-off of addressing the problem via the competition system, patent system or both? When intellectual property laws are being used to impede innovation should competition law intervene?
This article considers a gap between patent law and competition law that is being profitably exploited by “patent trolls”, firms whose business is the acquisition and assertion of patents against parties who are already using the patented technology.5 First, we frame the discussion by considering the interaction of competition law and patent law and how the interaction can, in theory, impact innovation. Then we look at the example of patent trolls and how they are taking advantage of an absence of competition and patent law enforcement: what they are, the reasons for their recent emergence and the main arguments in defence of patent trolling. Next we examine the economic cost and harm to innovation caused by patent trolls in the context of wider issues in competition and patent law and policy, including asymmetry of litigation risk, the hold- up problem and the growing valuation of patents based on the right to exclude rather than the economic value of the underlying invention. Finally, we survey the efforts to stem patent abuse, including patent trolling, through market, judicial, legislative and regulatory means. Regardless of the source of the solution, be it patent or competition law or policy, patent trolling highlights a clear need for reform to achieve the innovation goals of both the competition and patent regimes. Law makers, enforcement agencies, regulators and the courts need to bridge the ever-widening gap.”
For a copy of the paper see:
Mind the Gap: Economic Costs and Innovation Perils in the Space Between Patent and Competition Law
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I had a chance today to look through some of the responses to the Bureau’s public consultations on its Revised Draft Abuse of Dominance Enforcement Guidelines. The Bureau issued new draft Abuse Guidelines for public comment on March 22, 2012.
Comments have now been posted, including by the American Bar Association (joint comments by the ABA’s Sections of Antitrust and International Law – see my earlier post: here), the National Competition Law Section of the Canadian Bar Association, Canadian Chamber of Commerce and C.D. Howe Institute Competition Policy Council.
Some of the more interesting points made in the various submissions include:
“Minimalist approach”. Concerns have generally been expressed with the “minimalist” approach taken by the Bureau in its revised draft Guidelines, which are substantially shorter and provide conspicuously less guidance than its earlier 2009 draft.
Market power. Recommending increased guidance on the degree of market power required to meet the “substantially or completely control” test (i.e., dominance) under the first branch of section 79.
Safe harbours. Suggesting that the Bureau adopt bright-line safe harbours for single and joint-firm conduct of 50% and 75% (the Bureau’s position in the current draft is that a market share between 35% and 50% will not give rise to a presumption of dominance, but “may be examined by the Bureau depending on the circumstances”, in contrast but more pro-firm friendly, to its position in its earlier draft that a share of 35% or higher would normally prompt continued investigation). The CBA Competition Section has advocated that the Bureau adopt an “unambiguous single-firm safe harbor market share threshold of 50%”.
Joint dominance. Concerted calls for the Bureau to provide increased guidance as to what in its view will constitute joint dominance under section 79, particularly what it considers necessary to establish the requisite linkage between firms to be considered to be jointly dominant (with the CBA Competition Section suggesting that coordination or tacit agreement should be required as a minimum for a finding of joint dominance).
Anti-competitive acts, intent and business justifications. Calling for increased guidance as to what it considers will constitute anti-competitive acts and intent, justification for a departure from established case law that an anti-competitive act must be intended to have a negative effect on a competitor and to restore guidance relating to legitimate business justifications (the subject of somewhat brief and cryptic comments by the Federal Court though significantly more commentary previously by the Bureau than in the current draft). With respect to legitimate business justifications, the various comments criticize the considerably pared down discussion by the Bureau of what will constitute a legitimate business justification for conduct that may otherwise constitute an anti-competitive act (which has been held by the Federal Court to be one factor that may offset otherwise anti-competitive acts for the second branch of the test under section 79).
Exclusionary acts and raising rivals costs. Criticizing the Bureau for withdrawing its previously more detailed guidance (in its 2009 draft Guidelines) relating to exclusionary acts and raising rivals’ costs. The earlier draft Guidelines, for example, provided detailed appendices setting out conduct previously found by the Tribunal to be anti-competitive, as well as significantly more detailed discussions by the Bureau previously of anti-competitive acts.
Predatory conduct. Suggesting that increased guidance from the Bureau would be helpful relating to its position on predatory pricing, including how it will implement a price-cost screen and situations that may not warrant enforcement. There have only been a handful of predatory pricing cases in Canada in the past twenty-five years since the introduction of the modern Competition Act, and significant questions remain including the appropriate measure of cost and legitimate justifications for below cost pricing.
Anti-competitive effects (SLC). Calling for increased analysis of how the Bureau will apply the “but for” test for a substantial lessening of competition, set out by Canada’s Federal Court in Canada Pipe – in the CBA Competition Section’s words, while “… the ‘but for’ analysis is conceptually simple, the practical application of this test is complex” (and remains unclear in Canada).
CANADIAN CONTEST RULES/PRECEDENTS
Do you need contest rules/precedents
for a Canadian contest?
We offer many types of Canadian contest/sweepstakes law precedents and forms (i.e., Canadian contest/sweepstakes law precedents to run common types of contests in Canada). These include precedents for random draw contests (i.e., where winners are chosen by random draw), skill contests (e.g., essay, photo or other types of contests where entrants submit content that is judged to enter the contest or for additional entries), trip contests and more. Also available are individual Canadian contest/sweepstakes precedents, including short rules (“mini-rules”), long rules, winner releases and a Canadian contest law checklist. For more information or to order, see: Canadian Contest Law Forms/Precedents. If you would like to discuss legal advice in relation to your contest or other promotion, contact us: Contact.
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Promotional contests in Canada are largely governed by the Competition Act, the Criminal Code, privacy legislation and the common law of contract. In addition, Quebec has a separate regulatory regime governing contests and contest authority (the Régie des alcools, des courses et des jeux). Canadian federal anti-spam law (CASL) also commonly applies to contests run in Canada (see below).
A few interesting regulatory law developments caught my eye today including:
Stanford University Press has published a new book entitled The Global Limits of Competition Law, edited by Daniel Sokol and Ioannis Lianos: Stanford University Press – The Global Limits of Competition Law.
The American Antitrust Institute has published a new global handbook on private competition law enforcement entitled The International Handbook on Private Enforcement of Competition Law: Edward Elgar Publishing – The International Handbook on Private Enforcement of Competition Law.
The Federal Government has introduced a new Safe Food for Canadians Act: Harper Government Introduces Safe Food for Canadians Act.
The Federal Privacy Commissioner yesterday issued a new policy position on online behavioural advertising: Policy Position on Online Behavioural Advertising.
The New York Times published an interesting Barnes & Noble Op Ed arguing that the settlement with e-book publishers would “punish consumers”: Barnes & Noble Argues Book Settlement “Punishes Consumers”.
The Australian competition regulator (the ACCC) has approved the Glencore/Viterra transaction: Australia Competition Watchdog Approves Glencore Takeover of Viterra.
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The Global Limits of Competition Law
Stanford University press has published a new book entitled The Global Limits of Competition Law edited by Daniel Sokol and Ioannis Lianos.
From Stanford University Press:
“Over the last three decades, the field of antitrust law has grown increasingly prominent, and more than one hundred countries have enacted competition law statutes. As competition law expands to jurisdictions with very different economic, social, cultural, and institutional backgrounds, the debates over its usefulness have similarly evolved.
This book, the first in a new series on global competition law, critically assesses the importance of competition law, its development and modern practice, and the global limits that have emerged. This volume will be a key resource to both scholars and practitioners interested in antitrust, competition law, economics, business strategy, and administrative sciences.”
For more information see:
Stanford University Press – The Global Limits of Competition Law
The International Handbook on Private Enforcement of Competition Law
The American Antitrust Institute has published a new book entitled The International Handbook on Private Enforcement of Competition Law, including chapters on Canada, the United States, Europe, Australia, China, India, South Africa and Brazil, among others.
From Edward Elgar Publishing:
“This comprehensive and well written volume surveys the private enforcement provisions of virtually every country in the world that has a competition law recognizing private actions. It is a first-of-its-kind, incredibly valuable undertaking. In addition to individual country surveys this book includes valuable comparative studies of private enforcement as well as theoretical and empirical analysis of its effects. Every competition lawyer with a multinational practice will benefit from owning it.” (Herbert Hovenkamp, University of Iowa, US)
For more information see:
Edward Elgar Publishing – The International Handbook on Private Enforcement of Competition Law
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Templates/precedents and checklists to run promotional contests in Canada
Templates/precedents and checklists to comply with Canadian anti-spam law (CASL)
